State v. Steward

• Decision Date: 06 October 1992
• Docket Number: No. WD,WD
• Citation: 844 S.W.2d 31
• Parties: STATE of Missouri, Respondent, v. Anna S. STEWARD, Appellant. 45404.
• Court: Missouri Court of Appeals

Page 31

844 S.W.2d 31

STATE of Missouri, Respondent, v. Anna S. STEWARD, Appellant.

No. WD 45404.

Missouri Court of Appeals,

Western District.

Oct. 6, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Nov. 24, 1992.

Application to Transfer Denied Jan. 26, 1993.

J. Gregory Mermelstein, Columbia, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before KENNEDY, P.J., and SPINDEN and SMART, JJ.

KENNEDY, Presiding Judge.

Defendant Anna Steward appeals her conviction for possession of cocaine, a controlled substance, under Section 195.202.2, RSMo Supp.1991. Defendant was sentenced to seven years imprisonment. Five points of error are asserted on appeal. Judgment affirmed.

On December 1, 1989, the Sheriff's Department of Callaway County, Missouri, executed a search warrant at the home of Wendell and Anna Steward in Fulton, Missouri. When they entered the house, the deputies found four people inside. The defendant was in the master bedroom, lying "toward the west side" of the bed. While defendant describes herself as a quadriplegic, she has use of her hands and arms. At trial she testified that she spends most of her time in bed or sitting in an orange recliner in the living room of the house. She uses a wheelchair to get around the house.

The police discovered a number of drug related items in the course of their search. In the living room next to the orange recliner they found an "Avon jar" containing 45 packets of a substance later identified as cocaine. A handgun was discovered in the pouch of the recliner. A wallet containing $125 was resting on the headboard of the bed where defendant was lying in the master bedroom. On the bed with defendant the police found $25 in cash. A bottle of Demerol, a controlled substance, with the name "Pam Brookings" on the label was resting on the nightstand located on the west side of the bed, the side defendant testified was "hers". On the east nightstand was a police scanner tuned to the frequency of the Fulton police. Inside the drawer of this nightstand the police discovered two more handguns and a box containing 70 one-dollar bills. Also in this nightstand, inside the double doors, the deputies found a sentry box. When Wendell Steward arrived, he gave police a key to the box. The box contained cocaine residue, $1,585 in cash, a small scale, several squares of paper similar to the ones in the Avon jar, and a bottle of Inositol, which is used as a cutting agent for cocaine.

The police also searched a closet containing all female clothing in the master bedroom. On the floor of the closet was a purse which defendant identified as the purse she was using at the time. Inside this purse was a wooden box with Wendell's nickname on it, which contained a "pinch hitter", a type of pipe often used to smoke drugs. Defendant stated that the box belonged to her husband, and could not explain why it was found in her purse. Another purse was found on the closet shelf, above a level which the defendant could reach on her own. This purse contained a cellophane bag found to contain cocaine. At trial defendant stated that, while this purse also belonged to her, she no longer used that purse and denied any knowledge of the cocaine. All of the items found in the search were introduced against the defendant in her trial for cocaine possession.

In her appeal defendant first asserts that the trial court erred in overruling her motion for acquittal at the close of all evidence because the evidence is insufficient to prove beyond a reasonable doubt that defendant knowingly and intentionally possessed cocaine. In reviewing the sufficiency of the evidence, the facts in evidence and all favorable inferences reasonably drawn therefrom are to be considered in the light most favorable to the state, and all inferences to the contrary are to be disregarded. State v. Falkner, 672 S.W.2d 373 (Mo.App.1984). In a case such as this one, which rests on circumstantial evidence, the facts and circumstances "must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence." State v. Livingston, 801 S.W.2d 344, 347 (Mo. banc 1990). The evidence does not have to be conclusive of guilt, nor does it have to demonstrate the impossibility of innocence (citation omitted). State v. Weide, 812 S.W.2d 866, 869 (Mo.App.1991).

In a case of possession of a controlled substance, the state must prove that the defendant knowingly and intentionally possessed the substance and knew the nature of the substance in question. State v. Weide, 812 S.W.2d at 869. In this case, the state had the burden of proving constructive possession by introducing other evidence connecting the defendant to possession of the cocaine. State v. Johnson, 811 S.W.2d 411 (Mo.App.1991). Additional evidence which may suffice to connect a defendant to possession of a controlled substance may include: a mixture of personal belongings of a defendant with the substance, routine access to an area where the substance is kept, and the value of the illegal substances found. (citations omitted). State v. Weide, 812 S.W.2d at 869. The fact that others have access to an area where drugs are found does not destroy the incriminating fact that a defendant has access to that area. Id., quoting State v. Adkins, 800 S.W.2d 28, 30 (Mo.App.1990).

We find there was sufficient evidence to convict defendant of possession of cocaine. Her situation is similar to cases decided by this court affirming convictions for possession of a controlled substance based on circumstantial evidence. For example, in State v. Hall, 687 S.W.2d 924 (Mo.App.1985), this court affirmed the conviction of a wife for possession of marijuana found in a home she shared with her husband. The drugs were found on a dresser in defendant's bedroom and in a second bedroom. The court pointed to the access of the defendant to the two rooms, the close proximity of the drugs to the bed where defendant was found when the police entered the house, and the fact that many of the items were in plain view. In State v. Weide, 812 S.W.2d 866 (Mo.App.1991), the court found that the fact that the drugs were in a box on a bureau to which defendant had access and alongside items that appeared to belong to defendant, as well as the value of the drugs ($2,000), were incriminating facts sufficient to sustain defendant's conviction.

Defendant attempts to argue that the state failed to prove constructive possession of each drug related item found in defendant's house. We first note the difficulty of this task, given the fact that the items were found in several locations throughout defendant's home. The cases cited by defendant are unpersuasive. State v. Falkner, 672 S.W.2d 373 (Mo.App.1984), held that the sole fact that defendant was the owner of the house where drugs were found was not sufficient to support the inference of defendant's exclusive use and possession of the house, and the further inference that defendant had knowledge of the presence and character of drugs found in the house. In State v. Barber, 635 S.W.2d 342 (Mo.1982), the Missouri Supreme Court reversed the conviction of a defendant found in a bedroom along with three other people and a large quantity of drugs. There was no evidence that defendant had regular use of the bedroom, or that defendant exercised any control over the drugs. The defendant's presence was found to be insufficient to establish the guilt of the defendant.

The fact situation in this case is very similar to a case out of the Southern District Court of Appeals, State v. McIntire, 819 S.W.2d 411 (Mo.App.1991). The defendant in McIntire was convicted of possession of more than 35 grams of marijuana. Bags of marijuana were found on a well house roof, under a nightstand in defendant's bedroom, on top of the nightstand, and in a hanging plant. The defendant denied ever seeing the marijuana and at trial her husband testified that he kept the drugs, which were his, hidden outside or under a divan, where his wife could not reach because of her pregnancy. The court stated that the credibility of this testimony was for the jury to determine and affirmed the conviction.

The same can be said for this case. Much of the cocaine was found in plain view in an area to which defendant had access. Some of the cocaine was found in a closet among her belongings, in a purse which she admitted was hers. Many of the drug related items were found in defendant's bedroom. The jury was in the best position to weigh the credibility of defendant's story that she was completely unaware of the presence of drugs in her home.

Defendant's second point on appeal asserts that the trial court erred in introducing certain evidence at trial. This evidence consisted of the bottle of Demerol found on defendant's nightstand, the "pinch hitter" found in defendant's purse, the cash and guns found in the house, and the scale, Inositol, and packets of paper found in the sentry box. The defendant argues that this evidence was irrelevant to the question of whether she possessed cocaine and allowed the jury to infer that she was guilty of the sale of cocaine, an uncharged crime.

Defendant is correct that evidence of other crimes is normally inadmissible, unless this evidence has a legitimate tendency to establish the guilt of the defendant for the charged crime. State v. Burr, 542 S.W.2d 527, 530 (Mo.App.1976). In State v. Camden, 837 S.W.2d 520 (Mo.App.1992), this court held that a cigarette butt found in defendant's jacket that contained marijuana was properly admitted in defendant's trial for possession of cocaine. The court stated that this evidence tended to prove defendant's intent to possess illegal drugs and his...